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By: Ina Steiner

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Judge Jeremy Fogel of the U.S. District Court for the Northern District of California granted eBay's motion for summary judgment, dismissing a lawsuit filed by several eBay users alleging anti-competitive activity by eBay and PayPal.

Michael Malone filed a lawsuit in April 2007 alleging that eBay "utilizes its nationwide monopoly of the on-line auction market to monopolize the available forms of payment that sellers can use on eBay." A second class-action complaint was filed by Ann Farmer and Todd Van Pelt on April 23, 2007, and the two lawsuits were consolidated.

eBay pointed to evidence in the record "that the named Plaintiffs as well as other eBay buyers and sellers substitute regularly among online auctions and other sales platforms and that its online auction format is priced competitively both with its own fixed-price platform and with Amazon, its fixed-price competitor."

eBay also argued: "While conceding that the online auction format may be unique, eBay disagrees strongly that the format represents a separate market for antitrust purposes. It argues that market definition is controlled by "commercial realities," as demonstrated by consumer behavior, and it cites unambiguous evidence in the record - particularly the testimony of the Named Plaintiffs that the relevant market for eBay sellers includes alternatives to the online format."

According to the judge's order, to survive summary judgment on the issue of causal antitrust injury, Plaintiffs must "offer some evidence demonstrating the existence of an antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendant's acts unlawful."

eBay claimed that Plaintiffs failed to present any such evidence. Plaintiffs (eBay sellers) alleged that they suffered antitrust injury through eBay's charging of "supracompetitive" fees for its online auction platform.

eBay's counsel, however, said it was "the essence of an overcharge case."

And eBay used the evidence of one of the plaintiffs to make their argument that auction sellers are sensitive to changes in price (ouch!):

"eBay also relies on the deposition testimony of Ann Farmer, one of the Named Plaintiffs, who testified that price increases for auction listings induced her to choose the fixed-price format instead."

Basically the judge said lawyers for the sellers did not provide him with enough evidence to deny eBay's motion for summary judgment. You can find the full document on the AuctionBytes website.

Well well well... You see what a few dollars slipped to right people can do?

If you think that's bad, wait till Meg gets her ''buy it now'' position as Governor...

I haven't read the full claim and defence details, though I have followed the case from the fringes.

In my opinion (which could be very wrong) it's likely the Plaintiff's approached the case from a purely USA-centric angle, which is where eBay would be able to construct the strongest defence.

Had the Plaintiffs included, and called for co-Plaintiffs, from the international community (including expatriated US citizens) then they would have had a far stronger and less defendable case against eBay. They could have called in actions such as -

- Causing MoneyBookers Inc to charge higher fees than the UK parent MoneyBookers Ltd, in order to have access to the eBay.com marketplace, and causing advantage to PayPal.

- Using the bait and switch method in relation to original community values (level playing field) then changing to a trading process that disadvantages small sellers in favour of corporate giants (one-way feedback, DSR minima volume-advantaging, PayPal holds for small sellers, non-transparency of poor feedback correction for Diamond Sellers, non-transparency of fees for Diamond Sellers, and so on).

eBay.com is now a PayPal-only site for sellers outside of the US, if those sellers cannot acquire bank-supplied merchant services - if that is not monopoly, then what is? How does eBay expect poor artisans in developing countries to build up enough cred with a bank to obtain merchant services, if they cannot demonstrate a broad list of customers paying direct into their bank account, or regular variable amount deposits into the same?

eBay itself may no longer have monopoly of the marketplaces marketplace, but it does have dominance and acts as a monopoly within it's own marketplace - that is a sticky point for the judge - at what point does internal corporate policy spill over into the broader marketplace and affect competitors?

My assessment is that if anything, eBay's own self-destructive actions have enabled the growth of alternative marketplaces and the issue to watch for now is eBay going on a buying spree acquiring the leading competitors. If that happens, then immediate cases should be filed with the US's equivalent of the UK's Monopolies and Mergers Commission (don't know what it's called in the US) because that surely would be anti-trust and detrimental to the overall online marketplaces marketplace.

Gaz

eBay Triumphs in Antitrust Lawsuit - Wins Summary Judgment

by: Wake-Up!

Thu Mar 4 23:51:29 2010

********** NEG MEG IN 2010! **********

eBay Triumphs in Antitrust Lawsuit - Wins Summary Judgment

by: Wacky Judges and...

Fri Mar 5 05:32:30 2010

Plaintiffs may have received bad counsel as well. This is a clear cut case for a win by the plaintiffs. They sound like they were not prepared. Were THEIR witnesses other EBAY sellers that can not accept or EVEN SAY THEY ACCEPT money orders anmd checks? Was their a POSTAL official statinf NO oney orders is anti-trust? Shame on the correct side for not doing their homework.NOE time to appeal & also file a criminal complaint ie Theft of Services. and btw ebay didn't "win", bad press is not a win.

eBay Triumphs in Antitrust Lawsuit - Wins Summary Judgment

by: and

Fri Mar 5 05:35:31 2010

sorry about the spelling. i am so pissed at this first result, but keep fighting.

eBay Triumphs in Antitrust Lawsuit - Wins Summary Judgment

by: Just Part One

Fri Mar 5 06:17:53 2010

Story is not over. APPEAL, file lots of motions, file complaints agaisnt biased judge, there is always something you (the plaintiffs) can do. Keep up the good fight. And get better legal counsel too.

eBay Triumphs in Antitrust Lawsuit - Wins Summary Judgment

by: anonymous

Fri Mar 5 09:49:11 2010

So wait a minute here...

Are they TELLING US we should use other sites also?

eBay pointed to evidence in the record "that the named Plaintiffs as well as other eBay buyers and sellers substitute regularly among online auctions and other sales platforms and that its online auction format is priced competitively both with its own fixed-price platform and with Amazon, its fixed-price competitor."

Their excuse for charging whatever they want to, is that we can go elsewhere??

Am I reading this wrong?

Or did they just tell us to "sod off" and go list someplace else??

I have been saying this all along that the only way you will get these idiots (lucky execs, they have a piece of paper with some ink-y marks on it, inside a frame hanging on the wall, it's truly the only evidence of any intelligent life over there in San Jose) to stop their increases and forcing anyone to do this or that is to GO SOMEWHERE ELSE.

I'm just glad they said it out loud themselves in a public forum.

Now will everybody listen??

eBay Triumphs in Antitrust Lawsuit - Wins Summary Judgment

by: Tired of eBay's Bullsh*t

Fri Mar 5 12:35:07 2010

I've not yet read the court papers, but I have some initial thoughts...

1. I think the scope of the suit was too broad. Forget the fees eBay charges etc etc etc. I feel that eBay's most egregious anti-competitive action is Paypal-only. Yes, they allow a few nobody-competitors -- and even screwed around with Moneybookers. How, you ask?

Moneybookers used to mean safe irrevocable payment. You funded your MB account, then sent those funds. MB terms stated that once sent, funds could not be recalled by the buyer. ie: No chargeback scam risk.

But when eBay added MB as acceptable, they forced MB to create "Moneybookers USA", and MB-USA has different terms than "Moneybookers", and those terms are more like Paypal when it comes to chargeback.

What's next with eBay? Their own "eBay bucks" currency? It is just so over the top that a VENUE should wield the same sort of power as a central bank -- and by owning Paypal, that, in effect, is just about the level of power that eBay has.

2.While I commend Malone et. al. for filing the lawsuit, I suspect that change only gonna come when BIGGER GUNS set their sights on eBay. Bigger as in a busload of State Attorneys General. ie: Something like what it took to get Big Tobacco on the carpet. To that end, I suggest that you write your State Attorney General.

It's one thing for eBay to wield its near-monopoly power as a venue, it is another thing entirely for eBay to also wield banking power by dictating that a seller can not accept US DOLLARS (for crying out loud) in the form of certified bank checks and bank wire transfer.

Paypal will soon contribute more to the eBay bottom line than the auction/FP business. And with eBay owning Paypal, we'll never get past their anti-competitive practices.

*** BREAK UP eBay/Paypal ***

... and use Google Checkout every where that you can -- they are the only option big enough to eventually give Paypal some competition (which is why eBay does not allow Google Checkout)

-Tired

eBay Triumphs in Antitrust Lawsuit - Wins Summary Judgment

by: just a peon

Fri Mar 5 16:32:53 2010

I know most people are very busy, especially in this economy. Trying to make a living seems to require about 5 times the amount of time it used to, but anyone who is involved in ebay/paypal lawsuits, would you be so kind as to post them here, if possible?

Such as date and location of court/trial proceedings, please?

That way maybe more of a support group (us!) -- coupled with some major media exposure -- could be present and possibly gain a fairer outcome.

The more eyeballs on the crooks, the less they can get away with.

By all means, I hope there is an appeal on this one!

eBay Triumphs in Antitrust Lawsuit - Wins Summary Judgment

by: Et tu, Brute!

Fri Mar 5 17:59:43 2010

Big Guy stomps Little Guy!

Ebay must be SO proud!

And I bet they REALLY are!

eBay Triumphs in Antitrust Lawsuit - Wins Summary Judgment

by: Fruity

Sat Mar 6 03:06:17 2010

@ Gaz, what do you mean by Moneybookers Inc increasing fees to Moneybookers UK in order to be on ebay.com? Can you or someone please explain that to me

@ anon, they want us to go elsewhere because it gives the appearance of competition

In all honestly, this company is growing to the point where its like a Goldman Sachs syndicate and its all about Paypal, all finance. Personally, I think they are just sinister people with egos the size of countries intermediaries are really obsolete now with technology and they need to divide us all and I'm just not into that.

if we continue to feed this beast, they will start charging us for air just like on Mars in Total Recall.

I think we should stick with Google, they are the only ones who consistently give us a fair shake. If they enhance their search engine , we will have a better shot. I'm not willing to let that go, are you?

I dont trust ebay, paypal, yahoo, microsoft, or facebook. They all want to put up toll booths. Google gives us stuff for free

eBay Triumphs in Antitrust Lawsuit - Wins Summary Judgment

by: Marvin

Sat Mar 6 05:06:32 2010

Judge Jeremy Fogel is a Federal Judge, he is appointed not elected so he doesn't have to run for office or raise campaign money. Federal judges are appointed by the president and approved by congress.

However those that put the federal judges on the bench and have the power to remove them take money from ebay. The president and congress have all taken ebays money there is a list on youtube just search for ebay buys congress. So while ebay may not payoff a Federal Judge they do pay money his Superiors.

Any lawsuit alleging antitrust or a monopoly is almost doomed to fail. Given ebays decline and competition from Amazon, eCrater, Bonanzle and other sites any claim ebay is a monopoly won't fly and proving antitrust is very very difficult. It's surprising a law firm even agreed to take this case.

The real show is yet to come.

eBay Triumphs in Antitrust Lawsuit - Wins Summary Judgment

by: Ina

Sat Mar 6 08:18:48 2010

I would not write off the justice system, it's often the last resort for the small guy.

From AuctionBytes, September 09, 2002:

"A federal judge said PayPal has a mandatory arbitration policy unfair to customers who complain their accounts are being mishandled, according to an article appearing in the September 7 issue of the San Francisco Chronicle. The ruling came August 30 by U.S. District Judge Jeremy Fogel, who will allow customers to take their grievances to a jury rather than go through the arbitration process. Judge Fogel also refused to dismiss a class-action lawsuit against PayPal by thousands of its customers."

The judge did not give an opinion on whether he thinks eBay is acting anti-competitively, he only said that the plaintiffs' lawyers did not provide enough evidence to move forward.

eBay Triumphs in Antitrust Lawsuit - Wins Summary Judgment

by: Jim

Sat Mar 6 17:11:29 2010

I would speculate that other litigation would be more productive than antitrust.

Why was the Ad Deal specifically stipulating that Yahoo end its US auctions prior to ebay's 2008 seller purge not even mentioned?

Why has the use of PayPal as ebay's enforcement mechanism gone unexamined?

Why have Thomas C Heller and David G Victor not published their Stanford University Press 10-year study of ebay's treatment of its sellers? Why has the report on which their book is based not been posted publicly to any website?

This study MUST see the light of day especially considering todays developments.

What about eBay’s criminal facilitation of shill bidding fraud, from the buyers’ perspective? For those with an attention span longer than thirty seconds, an evening’s entertainment of supporting detail at http://www.auctionbytes.com/forum/phpBB/viewtopic.php?p=6502877>

eBay Triumphs in Antitrust Lawsuit - Wins Summary Judgment

by: Ebay No More

Mon Mar 8 21:44:41 2010

Another validation that our legal system has been sold to the highest bidder. Just like our political system. It doesn't matter that you are right it's who's palm you greased is who wins. I think I am going to be sick.

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